U.S. NSA domestic phone spying program illegal: appeals court

(Reuters) – A U.S. spying program that collects data about millions of Americans’ phone calls is illegal, a federal appeals court ruled on Thursday, adding pressure on lawmakers to decide quickly whether to end or replace the program, which was intended to help fight terrorism.

While stopping short of declaring the program unconstitutional, the 2nd U.S. Circuit Court of Appeals in Manhattan said Congress did not authorize the National Security Agency to collect Americans’ phone records in bulk.

The existence of the NSA’s collection of “bulk telephony metadata” was first disclosed in 2013 by former NSA contractor Edward Snowden.

Writing for a three-judge panel, Circuit Judge Gerard Lynch said Section 215 of the Patriot Act governing the collection of records to fight terrorism did not authorize what he called the NSA’s collection of a “staggering” amount of information, contrary to claims by the Bush and Obama administrations.

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” Lynch wrote in a 97-page decision. “We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.”

The appeals court did not issue an order to stop the collection of data, noting that parts of the Patriot Act including Section 215 will expire on June 1. Lynch said it is for Congress to make clear whether it considers the NSA program permissible.

Federal appeals courts in Washington, D.C. and California are also considering whether the program is legal.

The U.S. Department of Justice had called the program necessary to protect national security.

Ned Price, a spokesman for the White House’s National Security Council, said President Barack Obama has been clear he wants to end the existing NSA program, and is encouraged by the “good progress” in Congress to find an alternative preserving its “essential capabilities.”

The ACLU did not immediately respond to a request for comment.

Last week, the House Judiciary Committee voted 25-2 in favor of the USA Freedom Act, which would end the bulk collection of telephone data, and the bill is expected to pass the full House.

A similar bill has been proposed in the Senate, with backing from some liberal Democrats and conservative Republicans, but has faced resistance from senators including Majority Leader Mitch McConnell. Passage remains uncertain.

COUNTER-PUNCH

Sen. Rand Paul, a Kentucky Republican and presidential candidate, tweeted after the decision that “phone records of law abiding citizens are none of the NSA’s business! Pleased with the ruling this morning.”

Another presidential candidate, Democratic Sen. Bernie Sanders of Vermont, tweeted that “the NSA is out of control and operating in an unconstitutional manner.”

Thursday’s decision overturned a December 2013 dismissal of the ACLU’s lawsuit by U.S. District Judge William Pauley in Manhattan, who called the NSA program a government “counter-punch” to terrorism at home and abroad.

Pauley had ruled 11 days after U.S. District Judge Richard Leon in Washington, D.C. said the “almost Orwellian” program might violate the Fourth Amendment.

Leon issued an injunction to block the program but put it on hold pending appeal. The federal appeals court in Washington heard oral arguments in November.

Thursday’s decision did not resolve the ACLU’s claim that the NSA program violated the bar against warrantless searches under the Fourth Amendment.

Lynch, though, did note the “seriousness” of the constitutional concerns over “the extent to which modern technology alters our traditional expectations of privacy.”

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